Board of Contract Appeals General Services Administration Washington, D.C. 20405 May 10, 1999 GSBCA 14888-RELO In the Matter of THOMAS R. MONTGOMERY Thomas R. Montgomery, Crane, IL, Claimant. Ray E. York, Director for Systems and Procedures, Finance Directorate, Defense Finance and Accounting Service - Indianapolis Center, Indianapolis, IN, appearing for Department of Defense. DANIELS, Board Judge (Chairman). When a transferred employee's family remains temporarily in its former residence after its belongings have been removed from the house, may that dwelling be considered "temporary quarters" for the purpose of entitlement to temporary quarters subsistence expenses (TQSE)? The question is posed in a claim filed by Thomas R. Montgomery, who was reassigned in September 1998 from the Savanna Army Depot Activity in Savanna, Illinois, to the Naval Surface Warfare Center in Crane, Indiana. Mr. Montgomery reported to his new duty station at the end of October. His wife and three children remained in Illinois for two weeks. On November 5, their household goods were packed in a moving van for delivery to Indiana. For the next four days, they stayed in the house, without furniture (they slept on the floor in sleeping bags) or any means of preparing or serving food. Then they drove to the new station and moved into permanent quarters. The Department of Defense (DoD) denied Mr. Montgomery's claim for reimbursement of the cost of meals consumed by his family during this period. The agency believed that "[t]ime spent in your old residence is not reimbursable regardless of whether or not you have furnishings or a means to prepare food." DoD's determination was in error in two regards. First, both the Federal Travel Regulation (FTR), which defines relocation benefits for Government employees generally, and the Joint Travel Regulations (JTR), which supplement the FTR with application to DoD civilian employees, no longer make vacating an old residence a condition of eligibility for TQSE. Patricia A. Tobin, GSBCA 14483-RELO, 98-1 BCA 29,663 (comparing 41 CFR 302-5.1 (1997) and JTR C13100 (Mar. 1, 1998) with 41 CFR 302-5.2(c) (1996) and JTR C13000 (Mar. 1, 1996)). Consequently, once an employee's residence becomes temporary (for example, by being sold and rented back until the time of a move), eligibility for TQSE is established. George S. Chaconas, GSBCA 14278-RELO, 98-1 BCA 29,728. Second, even under the old rules, which forbade an employee's family from receiving TQSE until it had vacated its old home, both the Comptroller General and this Board held that a residence was "constructively vacated" when it was no longer suitable for permanent residence. The common example of this situation was that household goods had been packed for moving and thus unavailable to the family. Gordon D. Giffin, GSBCA 14425-RELO, 98-2 BCA 30,100 (citing John L. Reid, B-227193 (Oct. 16, 1987); Beverly L. Driver, B-181032 (Aug. 19, 1974)). The version of the JTR in effect at the time of Mr. Montgomery's transfer defined "temporary quarters," for the purpose of eligibility for TQSE, as "private or commercial lodgings occupied temporarily after a PCS [permanent change of station] is authorized." C13100-A (Mar. 1, 1998). The Montgomerys' old residence met all elements of this requirement -- it was clearly private lodgings; once the household goods were packed and unavailable to the family, it was being occupied temporarily; and the temporary occupancy occurred after September 1998, when the PCS was authorized. Unless DoD determines that the amounts claimed by Mr. Montgomery for meals consumed by his wife and children during the four-day period in question were unreasonable, JTR C13125-A.3.b (Apr. 1, 1998), it should reimburse the employee for those sums. _________________________ STEPHEN M. DANIELS Board Judge